Pursuant to Article 52 of the Criminal Code, a company may be financially liable for an offence committed by a private individual who acted in the company’s name or interest if the offence in question benefited that company. However, for the company to become financially liable, a number of preconditions, both financial and formal, must be satisfied jointly.
In the first place, it should be kept in mind that the company may be held liable solely when the defendant has been sentenced. The sentencing should be understood to mean the ascribing of the offence to the defendant and issuance of a decision specifying the defendant’s punishment and the criminal remedies applicable to the defendant.
Conditional discontinuance of the proceedings does not constitute the sentencing but the decision to refrain from application of the punishment does. Another essential precondition is the sentencing for an offence which benefited the company financially. It is worthwhile to note that in such case the company which obtained the financial benefit does not have to be at fault. What counts is merely the fact that the financial benefit was actually obtained. It may thus happen that the company is not aware that it has obtained the benefit as a result of an offence. For the company to be held liable, it must be proven that the sentenced person acted in the company’s name or interest. The capacity in which that person acted is of no relevance. She or he can be a proxy, an employee, a member of the company’s governing body but also a third party unrelated to the company. The only fact of relevance is that the actions of the sentenced person were taken in the name or interest of the company. The last precondition for issuing a ruling on the reimbursement of the benefit to the State Treasury is for that benefit not to be subject to reimbursement to another entity. When the benefit is due to another person, it cannot be awarded to the State Treasury. The provisions of the Civil Code stipulate to whom the benefits are to be reimbursed.
The formal precondition for issuing a ruling on the obligation to reimburse the benefits is filing of the relevant motion by the prosecutor (such motion cannot be filed by another body acting as public prosecutor). In the absence of the motion, the court cannot issue a ruling on the basis of Article 52 of the Criminal Code. The prosecutor may file such motion at the time of filing of the indictment, at the latest. This is attributable, inter alia, to the fact that in the case of the filing of the said motion the company that may potentially be held liable should be notified of the date of the hearing to duly prepare its defence. The company may appoint a legal representative with a view to protecting its rights as well as file motions and present evidence independently for the purpose of its release from liability. Hearing by the court of the testimonies of the members of the company’s competent bodies is also obligatory. However, the persons representing the company may refuse to testify. Such testimonies may be abandoned, inter alia, when the proceedings are discontinued or when the company did not benefit financially.
The obligation to reimburse the financial benefit referred to in Article 52 of the Criminal Code to the State Treasury is ordered either in full or in part. However, those benefits cannot be awarded to any local government body. The doctrine stipulates also that the benefit obtained should not be confused with the potential loss as the resulting loss does not constitute a precondition for application of Article 52 of the Criminal Code.
As a side note, it should be observed that the potential obligation to reimburse the financial benefit can be secured against the company’s assets. This is a situation that is undesirable in each case from the point of view of the company’s operation as it leads to the freezing of the assets that may prove indispensable for the company’s everyday activity.